2 Rob. 262 | La. | 1842
A re-hearing has been prayed for in this case, and the question of law on which the case is supposed to turn has been elaborately argued. We have thought it proper to state the reasons which, after full consideration, have induced us not-to accede to the prayer of the petitioner.
The facts are simple and undisputed. Senac married, and made his will in New Orleans, and sailed shortly after for France, where he passed the rest of his days. A child, the issue of the marriage, survived him. The question is, whether the birth of the child revoked the will according to the laws of Louisiana, so far as it relates to the property situated here. The judgment first pronounced adopted the affirmative.
We admit the general principle contended for. It is sustained by ample authority, and has been uniformly adhered to by this court, in which questions of this kind more frequently arise than perhaps in any other in the Union. The doctrine is so well settled, that it has been enacted as a formal article of our Code. “ The form and effect of public and private written instruments are governed
The argument on the other side is, in substance, that although this will is to have its effect here, yet that the testator being domi-ciliated in France at the time of his death, and the will having in law no date until the moment of the death of the testator, it must be considered as a French will, and construed according to the laws of France, and consequently that it was not revoked by the subsequent birth of a child. But the same article creates an exception in relation to testaments or other dispositions mortis causa, which takes them out of the general rule, and requires, in order to give effect to them, as to moveables, as foreign dispositions, that the donor or testator should be' domiciliated abroad both at the time of making such will or donation, and at the time of his death. The words of that clause of the 10Lh article are: “The exception made in the second paragraph of this article does not hold when a citizen of another State of the Union, or a citizen or subject of a foreign State or country; disposes by will or testament, or by any other act causa mortis, made out of the State, of his moveable property situated in this State, if, at the time of making said will or testament, or any other act causa mortis, and at the time of his death, he resides and is domiciliated out of this State.” Civ. Code, art. 10. The meaning of this clause, although obscurely expressed, we take to be, that although in general the effect of acts passed in one country to have their effect in another, is regulated by the laws of the latter country, yet in relation to testaments and donations in prospect of death, this does not hold where the testator or donor resided abroad both when the act was executed and when he died. In other words, that a will or' donation mortis causa, in order to have its effect here as a French will, must have been made in France, and the donor must have died there. If made here, and the testator died there, it will be governed by the local law, the lex rei sita, it is only when both these circumstances concur, that he shall be considered as making the donation with reference to the laws of his domicil. The law of Louisiana is, “ the testament falls by the birth of legitimate children of the
It is, therefore, ordered that the judgment first pronounced remain undisturbed.